SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1234 

CA 12-00641 

PRESENT: CENTRA, J.P., PERADOTTO, SCONIERS, VALENTINO, AND MARTOCHE, JJ. 

 

 

JOSEPH V. MANTIONE, PLAINTIFF-RESPONDENT, 

V MEMORANDUM AND ORDER

CRAZY JAKES, INC., DOING BUSINESS AS CRAZY 

JAKE’S RESTAURANT, CRAZY JAKE’S RESTAURANT, 

WEBSTER PROPERTIES OF WNY, INC., GREG T. DOEL, 

TIMMY L. BROCIUS, DEFENDANTS-APPELLANTS,

ET AL., DEFENDANTS.

 

GROSS, SHUMAN, BRIZDLE & GILFILLAN, P.C., BUFFALO (KATHERINE M. LIEBNER

OF COUNSEL), FOR DEFENDANTS-APPELLANTS. 

BURDEN, GULISANO & HICKEY, LLC, BUFFALO (SARAH E. HANSEN OF COUNSEL),

FOR PLAINTIFF-RESPONDENT. 

 

Appeal from an order of the Supreme Court, Niagara County (Ralph A.

Boniello, III, J.), entered February 16, 2012 in a personal injury

action. The order denied the motion of defendants-appellants to dismiss

the complaint. 

It is hereby ORDERED that the order so appealed from is unanimously

affirmed without costs.

Memorandum: Plaintiff commenced this action seeking damages for

injuries he sustained as a result of the alleged misconduct of

“bouncers” at defendant Crazy Jake’s Restaurant, a restaurant and bar

operated by defendant Crazy Jakes, Inc., doing business as Crazy Jake’s

Restaurant (collectively, Crazy Jake’s). Before answering the

complaint, defendants Webster Properties of WNY, Inc. (Webster), Greg T.

Doel and Timmy L. Brocius, as well as Crazy Jake’s (collectively,

defendants), moved to dismiss the complaint in its entirety against Doel

and Brocius; the second cause of action, for intentional tort, against

Crazy Jake’s and Webster; the third cause of action, for negligent

hiring and retention, against Crazy Jake’s; and the fourth cause of

action, for punitive damages, against Crazy Jake’s and Webster (see CPLR

3211 [a] [7]). In support thereof, defendants submitted, inter alia,

affidavits from Doel and Brocius, wherein they averred that they were

not present at the time of the incident. Supreme Court properly denied

defendants’ motion.

In determining a CPLR 3211 motion, “a court may freely consider

affidavits submitted by the plaintiff to remedy any defects in the

complaint . . . and ‘the criterion is whether the proponent of the
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CA 12-00641 

pleading has a cause of action, not whether he has stated one’ ” (Leon v

Martinez, 84 NY2d 83, 88; see Gibraltar Steel Corp. v Gibraltar Metal

Production, 19 AD3d 1141, 1142). The court may also consider affidavits

and other evidentiary material to “establish conclusively that plaintiff

has no cause of action” (Rovello v Orofino Realty Co., 40 NY2d 633, 636;

see Gibraltar Steel Corp., 19 AD3d at 1142). “Any facts in the

complaint and submissions in opposition to the motion to dismiss are

accepted as true, [however,] and the benefit of every possible favorable

inference is afforded to the plaintiff” (Gibraltar Steel Corp., 19 AD3d

at 1142). 

Defendants contend that the court erred in denying that part of

their motion to dismiss the complaint against Doel and Brocius because

the evidence conclusively established that they were not present at the

time of the incident and thus were not participants in the wrongful

conduct. We reject that contention. In opposition to the motion,

plaintiff submitted an affidavit in which he stated that Doel and

Brocius were present at the time of the incident. Thus, accepting that

fact as true, as we must on this motion to dismiss, we conclude that the

evidence does not conclusively establish that Doel and Brocius were not

present at the time of the incident and that they therefore were not

participants in the wrongful conduct (see generally Rovello, 40 NY2d at

636; Clark v Pine Hill Homes, Inc., 112 AD2d 755, 755). In light of

that determination, we need not address at this juncture defendants’

contention that Doel and Brocius are entitled to dismissal of the

complaint against them on the ground that they cannot be held liable for

the torts of others. 

Defendants also contend that the court erred in denying that part

of their motion seeking dismissal of the cause of action for negligent

hiring and retention against Crazy Jake’s because the complaint does not

allege that Crazy Jake’s had reason to know that the bouncers employed

by it had a propensity for the conduct that caused the injury. We

reject that contention. There is no requirement that a cause of action

for negligent hiring and supervision be pleaded with specificity (see

Porcelli v Key Food Stores Co-Op., Inc., 44 AD3d 1020, 1021). Moreover,

we note that plaintiff submitted an affidavit wherein he averred that,

prior to the incident, complaints had been made regarding the use of

force by Crazy Jake’s bouncers. 

We have considered defendants’ remaining contentions and conclude

that they are without merit.

Frances E. Cafarell

Entered: December 28, 2012

Clerk of the Court